Ask the expert?

Procurement iStock 000002542569XSmall 146x219The High Court has handed down an important judgment on the role of expert evidence in procurement challenges. Colin Ricciardello assesses the ruling.

In the past 12 months or so there have been a number of procurement cases which have refined and reinforced earlier established case law principles and themes so Mr Justice Coulson’s judgment in By Development Limited & Ors v Covent Garden Market Authority [2012] EWHC 2546 (TCC) was noteworthy for providing a judgment in the public procurement field where there was no direct authority.

The issue for the Court to decide was whether expert evidence was relevant and admissible when determining whether a public authority had made manifest errors or acted unfairly in evaluating final tenders.

In procurement claims, expert evidence is frequently allowed in order to help the Court to determine causation of damage and/or quantum of damage. This case was different however in that the Claimant’s application for permission to adduce expert evidence went to the evaluation/award decisions themselves – being questions of liability.

In civil cases, expert opinion evidence is restricted to that which is reasonably required to resolve the proceedings and experts are under a duty to help the Court on matters within their expertise. It was the established extent and nature of the Court’s role in resolving procurement challenges which led the Court to decide here that expert evidence was generally not admissible in procurement or judicial review cases. It therefore refused the Claimant’s application to adduce planning and financial expert evidence.

Facts

The Defendant was a statutory corporation which owned the site of the New Covent Garden Market. They wished to develop the site and invited tenders using the Competitive Dialogue Procedure. The Claimant reached the final tender stage but lost. The Claimant contended that the evaluation of their and the winner’s final tender contained a number of manifest errors (particularly when it came to assessing planning matters/the risk of not securing the relevant planning permission). In the alternative the award decision was unfair – or treated their tender unfairly[1].

The court’s role in procurement challenges

The Judge accepted the general principle that the Court’s function was limited to reviewing whether the award decision amounted to a manifest error and/or whether the process was in some way unfair. It was not therefore substituting its own view as to the merits of the tenders and re-marking them. It must “…restrict itself to examining the accuracy of findings of facts and law made by the authority concerned and to verifying, in particular, that the action taken by that authority is not vitiated by a manifest error or misuse of powers and that it did not clearly exceed bounds of its discretion”[2]. In judicial review proceedings it is very rare for expert evidence to be relevant or admissible even in very technical areas such as planning matters.

The judgment in R (on the application of Lynch) v General Dental Council [2003] EWHC 287 (Admin) emphasised that expert evidence was particularly inappropriate where the public body making the challenged decision was itself a body made up of experts or it had been advised by an expert assessor. Nevertheless in Lynch it was accepted that expert evidence could be appropriate in rare cases if it would assist the Court in explaining what is involved in a particular process and how complicated that process was. However, an expert’s report which went on to give an opinion that it was irrational for the public body to reach a particular conclusion would amount to an illegitimate usurpation of the Court’s function.  

In defining “manifest error” Coulson J. endorsed the approach taken in Lion Apparel Systems Limited v Firebuy Limited [2007] EWHC 2179 (Ch) and the reference to “manifest” did not require an “…exaggerated description of obviousness”. A case of “manifest error” is a case where an error has clearly been made. In applying that approach Coulson J. decided that where issues of manifest error or unfairness fall to be considered, expert evidence will not generally be admissible or relevant in judicial review or procurement cases partly because of the court’ s limited review of decisions jurisdiction.

The Claimants attempted to displace this general position by pointing to three procurement cases where expert evidence was admitted but each of them were distinguished because of their particular circumstances as follows; Harmon v House of Commons [1999] 67 Con LR – the evidence went to causation of loss; Henry Brothers v Dept of Education [2011] NICA 59 – the expert evidence concerned the applicability of one criterion rather than wider issues of the whole tender process; Newcastle NHS v. Newcastle Primary Care Trust [2012] EWHC 2093 (QB) – a passing reference by the judge on an interim application.

The judge held that this opinion evidence might though be admissible in procurement cases concerned with manifest error where there were “unusual circumstances” and technical or complex questions arose. He therefore rejected the Defendant’s argument that if expert evidence was required to establish if an error had been made that could never be “manifest”. Those circumstances and complexities were not found to exist in this case and instead a relatively straightforward consideration of planning and financial matters was required .The court’s review would then be no different to reviewing a planning decision in the Administrative Court.

Further, the Claimant’s proposed issues for the experts were held to be “…designed to permit nothing less than a complete re-run of the evaluation process, with the experts commenting on each element of the tenders and their evaluation, and seeking to substitute their own views for those held, and the decisions taken, at the time. The questions ignore the limited review task for the court at trial, and erroneously assume that a complete replay of the whole evaluation process will be allowed.” So the evidence would be directed showing that whole evaluation was manifestly wrong, which in the light of Lynch was prohibited.

In cases of unfairness and unequal treatment, however, the Judge noted that it was difficult to see any circumstance where expert evidence could be admissible.  

Conclusion

This decision shows again (1) the limited basis of manifest error challenges and (2) that despite there being little room for judicial review in procurement challenges from economic operators, the reliance on Lynch and the parallels with irrationality in domestic public law illustrate that the Court’s supervisory role in procurement challenges is similar.

Colin Ricciardiello is a Partner at Sharpe Pritchard. He can be contacted on 020 7405 4600 or by This email address is being protected from spambots. You need JavaScript enabled to view it..


[1] The test of ‘manifest error’ in procurement challenges is similar, if not the same, as the Wednesbury test of irrationality in judicial review proceedings – see Upjohn below. So, the Court had to give the contracting authority a broad discretion and which should only be disturbed if the decision represented a manifest error.

[2] Upjohn Limited v Licensing Authority Established Under Medicines Act 1968 [1999] 1 WLR 927. See also Letting International v London Borough of Newham [2008 EWHC 1583] at 115 where it was held that it was not the Court’s “…task merely to embark on a remarking exercise and to substitute my own view [the Judge’s view] but to ascertain if there is a manifest error, which is not established merely because on mature reflection a different mark might have been awarded”. Manifest errors in Lettings were found without expert evidence.